Advertisement Serving and Sales Agreement

Advertisement Serving and Sales Agreement

This Agreement is made by and between Five Tier, Inc. and Publisher.

  1. Engagement of Services. Five Tier will serve as Publisher's representative to serve and sell advertising for Publisher's website, application, or digital platform. "Advertising" means specific third party advertisements consisting of billboard-like graphics displayed in a specific location on the Publisher's website, application, or digital platform. Five Tier, Inc. will update Publisher on the progress and demand of the advertising marketplace, while Publisher will update Five Tier, Inc. on new opportunities with Publisher's website, application, or digital platform.

  2. Compensation. Publisher will always provide Five Tier, Inc. with the lowest rate (the "Floor Rate") provided to any partner of any type including but not limited to clients, networks, marketplaces, and sales agents and   Five Tier, Inc. will take any margin above the Floor Rate until a two time ("2x") Floor Rate price is reached.  At 2x plus one cent ($0.01) Publisher will pay Five Tier, Inc. a commission of fifty percent (50%) of the revenues received by Publisher from advertisements sold, directly or indirectly, by Five Tier, Inc., to any advertiser introduced by Five Tier, Inc. 

  3. Invoicing and Payment. Five Tier, Inc. will be responsible for invoicing and collecting all revenues from advertising sold by Five Tier, Inc. on behalf of Publisher. Five Tier, Inc. shall have sole discretion to set the prices for advertising. By the tenth (10th) day of each month Five Tier, Inc. will remit to Publisher payment for the Floor Rate of any advertisements sold, or fifty per cent (50%) - whichever is higher, of all revenues received by Five Tier, Inc. for Publisher advertising that sold during the previous month.

  4. Reporting. By the fifteenth calendar day of each month, Publisher will provide Five Tier, Inc. with a tracking report that lists total number of screen views during the previous month. By the fifteenth calendar day of each month, Five Tier, Inc. will provide a monthly tracking report to Publisher that lists daily impressions and click-throughs for each advertising unit that ran in the prior month. Publisher will work with Five Tier, Inc.'s programmers to export the banner tracking results to each party electronically. All information received in connection with such reports shall be deemed to be "Confidential Information" in accordance with the terms of Section 7.2 ("Confidential Information").

  5. Audits. With ten (10) days notification. Publisher shall have the right to inspect and audit the revenue records of Five Tier, Inc., which inspection and audit shall be conducted during regular business hours at the offices of Five Tier, Inc. in such a manner as not to interfere with Five Tier, Inc.'s normal activities. If such audit shows that any of Five Tier, Inc.'s reports understated the actual due to Publisher by more than five percent (5%), then Five Tier, Inc. shall pay to Publisher all reasonable costs and expenses which may be incurred by Five Tier in conducting such audit and collecting such underpayment (including, without limitation, the fees of Publisher's independent certified accountants, if any). All information received in connection with such audits, and the results thereof, will be deemed to be "Confidential Information" in accordance with the terms of Section 7.2 ("Confidential Information").

  6. Independent Contractor Relationship. Five Tier, Inc.'s relationship with Publisher is that of an independent contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Five Tier, Inc. will not be entitled to any of the benefits which Publisher may make available to its employees, including, but not limited to, group health or life insurance, profit-sharing or retirement benefits. Five Tier, Inc. is not authorized to make any representation, contract or commitment on behalf of Publisher unless specifically requested or authorized in writing to do so by a Publisher manager. Five Tier, Inc. is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of fees under this Agreement. Five Tier, Inc. is solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing services under this Agreement. No part of Five Tier, Inc.'s compensation will be subject to withholding by Publisher for the payment of any social security, federal, state or any other employee payroll taxes. Publisher will regularly report amounts paid to Five Tier, Inc. by filing Form 1099-MISC with the Internal Revenue Service as required by law.

  7. Intellectual Property Rights.
    1. Ownership and Assignment. Five Tier, Inc. shall own all intellectual property rights in and to any artwork, documents, inventions or ideas developed by Five Tier, Inc. in connection with the services Five Tier, Inc. is providing specifically for Publisher under this Agreement.

    2. Confidential Information.
      (a) Definition of Confidential Information. "Confidential Information" as used in this Agreement shall mean any and all technical and non- technical information and proprietary information, including without limitation, techniques, sketches, drawings, models, inventions, Intellectual Property, patent applications, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to the current, future and proposed products and services of Five Tier, Inc., its suppliers and customers. Five Tier, Inc.'s information concerning research, experimental work, development, design details and specifications, engineering information, financial information, procurement requirements, purchasing and manufacturing information, customer lists, business forecasts, sales and merchandising and marketing plans and information.

      (b) Five Tier, Inc. Nondisclosure and Nonuse Obligations. Five Tier, Inc. will use the Confidential Information solely to perform the services required in this agreement for the benefit of Publisher, Five Tier, Inc. agrees that its shall treat all Confidential Information of Publisher with the same degree of care as it accords to its own Confidential Information, and Five Tier, Inc. represents that it exercise reasonable care to protects its own Confidential Information. Five Tier, Inc. agrees that it shall disclose Confidential Information only to those employees who need to know such information and certifies that such employees have previously agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those of this Agreement, Five Tier, Inc. agrees not to communicate any information to Publisher in violation of the proprietary rights of any third party. Five Tier, Inc. will immediately give notice to Publisher of any unauthorized use or disclosure of the Confidential Information. Five Tier, Inc. agrees to assist Publisher in remedying any such unauthorized use or disclosure of the Confidential Information.

      (c) Publisher Nondisclosure and Nonuse Obligations. Publisher agrees that it shall treat all Confidential Information of Five Tier, Inc. with the same degree of care as it accords to its own Confidential Information, and Publisher represents that it exercises reasonable care to protects its own Confidential Information. Publisher agrees that it shall disclose Confidential Information only to those employees who need to know such information and certifies that such employees have previously agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those of this Agreement. Publisher agrees not to communicate any information to Five Tier, Inc. in violation of the proprietary rights of any third party. Publisher will immediately give notice to Five Tier, Inc. of any unauthorized use or disclosure of the Confidential Information. Publisher agrees to assist Five Tier, Inc. in remedying any such unauthorized use or disclosure of the Confidential Information.

      (d) Five Tier, Inc.'s Exclusions from Nondisclosure Obligations. Five Tier, Inc.'s obligations under Paragraph 7.2(b) ("Nondisclosure") with respect to Confidential Information shall terminate when Five Tier, Inc. can document that: (a) the information was in the public domain at or subsequent to the time it was communicated to Five Tier, Inc. by the disclosing party through no fault of Five Tier, Inc.; (b) the information was rightfully in Five Tier, Inc.'s possession free of any obligation of confidence at or subsequent to the time it was communicated to Five Tier, Inc. by the disclosing party; or (c) the information was developed by employees or agents of Five Tier, Inc. independently of and without reference to any information communicated to Five Tier, Inc. by the disclosing party. If Five Tier, Inc. is required to disclose the Confidential Information in response to a valid order by a court or other government body, or as otherwise required by law or as necessary to establish the rights of either party under this Agreement, Five Tier, Inc. agrees to provide Publisher with prompt written notice so as to provide Publisher with a reasonable opportunity to protect such Confidential Information.

      (e) Publisher's Exclusions from Nondisclosure Obligations. Publisher's obligations under Paragraph 7.2(b) ("Nondisclosure") with respect to Confidential Information shall terminate when Publisher can document that: (a) the information was in the public domain at or subsequent to the time it was communicated to Publisher by the disclosing party through no fault of Publisher; (b) the information was rightfully in Publisher's possession free of any obligation of confidence at or subsequent to the time it was communicated to Publisher by the disclosing party; or (c) the information was developed by employees or agents of Publisher independently of and without reference to any information communicated to Publisher by the disclosing party. If Publisher is required to disclose the Confidential Information in response to a valid order by a court or other government body, or as otherwise required by law or as necessary to establish the rights of either party under this Agreement, Publisher agrees to provide Five Tier, Inc. with prompt written notice so as to provide Five Tier, Inc. with a reasonable opportunity to protect such Confidential Information.

      (f) Disclosure of Third Party Information. Neither party shall communicate any information to the other in violation of the proprietary rights of any third party.

    3. Return of Publisher's Property. All materials furnished to Five Tier, Inc. by Publisher, whether delivered to Five Tier, Inc. by Publisher or made by Five Tier, Inc. in the performance of services under this Agreement (collectively referred to as the "Publisher Property") are the sole and exclusive property of Publisher and/or its suppliers or customers. Upon termination of this Agreement by either party for any reason, Five Tier, Inc. agrees to promptly deliver to Publisher or destroy, at Publisher's option, the original and any copies of the Publisher Property. Within five (5) days after the termination of this Agreement, Five Tier, Inc. agrees to certify in writing that Five Tier, Inc. has so returned or destroyed all such Publisher Property.

  8. No Conflict of Interest. During the term of this Agreement, Publisher may not enter into an arrangement with any other advertisement serving or sales provider. Publisher warrants that, to the best of its knowledge, there is no other contract or duty on Publisher's part which conflicts with or is inconsistent with this Agreement.

  9. Term and Termination.
    1. Term. This Agreement is effective as of the date on the signed Addendum outlining additional details of the relationship between Publisher and Five Tier, Inc. will automatically renew one year from it's effective date unless terminated earlier as set forth below.

    2. Termination by Publisher. Publisher may terminate this Agreement, with or without cause, at any time upon ninety (90) days prior written notice to Five Tier, Inc. Publisher also may terminate this Agreement immediately in its sole discretion upon Five Tier, Inc.'s material breach of Section 7 ("Intellectual Property Rights") and/or upon any acts of gross misconduct by Five Tier, Inc. If Publisher terminates without cause, Five Tier, Inc. may continue to call, up to ninety (90) days after the termination date, all the advertisers that Five Tier, Inc. previously invoiced for Publisher during the term of this Agreement. Five Tier, Inc. will continue to receive its commission for all advertising sold by Five Tier, Inc. to such advertisers, including all advertising that it sells for Publisher during the term of this Agreement and invoiced during this 90-day period, that run past the termination date, as set forth in Section 2 ("Compensation").

    3. Termination by Five Tier, Inc. Five Tier, Inc. may terminate this Agreement, with or without cause, at any time upon ninety (90) days prior written notice to Publisher. Five Tier, Inc. may continue to call, up to ninety (90) days after the termination date, all the advertisers that Five Tier, Inc. previously invoiced for Publisher during the term of this Agreement, and will continue to receive commissions for all advertising by such advertisers invoiced during this period, as set forth in Section 2 ("Compensation").

    4. Effects of Termination; Survival. In the event of the termination of this Agreement, all payments due shall accelerate and become due upon the effective date of termination to the extent that they have been earned. These remedies are in addition to any other remedies that may be available to the parties at equity or under law. The rights and obligations contained in Sections 7 ("Intellectual Property Rights"), 9 (Term and Termination), 12 (Governing Law; Jurisdiction) and 15 (Injunctive Relief for Breach) will survive any termination or expiration of this Agreement.

  10. Successors and Assigns. Five Tier, Inc. may not subcontract or otherwise delegate its obligations under this Agreement without Publisher's prior written consent. Subject to the foregoing, this Agreement will be for the benefit of Publisher's successors and assigns, and will be binding on Five Tier, Inc.'s assignees.

  11. Notices. Any legal notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by telecopy or facsimile transmission upon acknowledgement of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth in digital communications or such other address as either party may specify in writing.

  12. Governing Law; Jurisdiction. This Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the State of New York.

  13. Severability. Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.

  14. Waiver. The waiver by Publisher of a breach of any provision of this Agreement by Five Tier, Inc. shall not operate or be construed as a waiver of any other or subsequent breach by Five Tier, Inc. The waiver by Five Tier, Inc. of a breach of any provision of this Agreement by Publisher shall not operate or be construed as a waiver of any other or subsequent breach by Publisher.

  15. Injunctive Relief for Breach. Either party's breach of the obligations contained in Sections 7 ("Intellectual Property Rights") and 8 ("No Conflict of Interest") will entitle the other party to injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including monetary damages if appropriate).

  16. Legal Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary disbursements, in addition to any other relief to which the party may be entitled.

  17. Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. The terms of this Agreement will govern all Project Assignments and services undertaken by Five Tier, Inc. for Publisher. This Agreement may only be changed by mutual agreement of authorized representatives of the parties in writing.

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